Gregson v NSW Department of Education

[2025] NSWCATAD 217

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gregson v NSW Department of Education [2025] NSWCATAD 217

Hearing dates:

4 August 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof R Graycar, Senior Member
J Herberte, General Member

Decision:

The application is dismissed.

Catchwords:

HUMAN RIGHTS – Discrimination – disability discrimination – discrimination on the ground of carer’s responsibilities – discrimination in employment – detriment – causation - reliance on Guidelines

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) Anti-Discrimination Act 1977 (NSW)

Teaching Service Act 1980 (NSW)

Cases Cited:

Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404

Braiding v Charles Sturt University [2016] NSWCATAD 90 at [34];

Burns v Sunol [2014] NSWCATAD 62

Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46];

Han v NSW Department of Health [2006] NSWADT 113

M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 82

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642

Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2017] NSWCATAD 355

Stefanac v Secretary, Dept of Family and Community Services [2018] NSWCATAD 106.

Tyrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57

Texts Cited:

none

Category:

Principal judgment

Parties:

Charnee Gregson (Applicant)
The NSW Department of Education (Respondent)

Representation:

Counsel:
C Bembrick (Respondent)

Solicitors:
Applicant (self-represented)
Clayton Utz (Respondent)

File Number(s):

2024/00457251

Publication restriction:

None

REASONS FOR DECISION

Background and introduction

1. The applicant has been employed as a teacher in the NSW Education Department (the respondent) since 2011, and as a permanent classroom teacher with the respondent since 2015. The applicant was on parental leave from 23 August 2022 to 19 December 2023 and subsequently was on leave without pay from her substantive position as a teacher at Penrith Public School from January 2024. During at least some of the period of leave without pay, she was working casually for two days per week at a different school.

2. In August 2023 the applicant applied for a compassionate transfer so that when her child started school in 2024, she would be closer to where he attended school. She made that application on the basis that her son suffered from a number of conditions, including ADHD, and autism. She completed an application for a transfer pursuant to s 51A of the Teaching Service Act 1980 (NSW) (TS Act) on 15 August 2023 (First Application) and gave as the ground “medical circumstances”, relating to her child. She attached a letter from a general practitioner which stated that her son is diagnosed with autism spectrum disorder, level 2; attention deficit hyperactivity disorder (ADHD) and sleep initiation difficulties.

3. She also provided a report dated March 2023 from an occupational therapist which recommended a range of funded supports. In addition, there was a report from a provisional psychologist indicating that the applicant had requested a letter of support for her transfer application. The son was described by that psychologist as having a pathological demand avoidance (PDA) profile which caused “chronic dysregulation” leading him to flee from anxiety-provoking situations. It was stated that only his mother or father were able to assist him to co-regulate when this occurred. This was the reason it was suggested that the applicant should be teaching at a school closer to her son so that she was able to attend to these situations as quickly as possible before they escalated. The school from which she was at the time of the application on leave was apparently some 45 minutes’ drive away from the school that her son was going to attend starting the following year.

4. The other concern expressed by the psychologist was that, if the applicant was not working closer to his school, her son would need to attend before and after school care and it was likely that he would experience significant distress more regularly with a longer day.

5. By a letter dated 24 August 2023, the applicant was advised by the Regional Director Educational Leadership (DEL) that her application did not meet the criteria for compassionate transfer. That is, it was considered that her situation “does not meet the threshold for exceptional and compelling circumstances where [her] current location will cause undue hardship”. She was encouraged to apply for suitable positions as they came up and were advertised and was invited to contact the decision maker if she had any further inquiries about the application.

6. On 5 October 2023, the applicant made a second compassionate transfer request (Second Application), this time relying not only on her son’s disability but also on her own disability. That application was refused by letter dated 4 December 2023, also on the basis that it did not meet the threshold set out in guidelines that required an applicant for a compassionate transfer to show that their circumstances were “exceptional and compelling”.

7. The applicant requested reasons for that decision and a further email was provided to her on 19 February 2024 indicating that the criteria for transfer were not fully met. The applicant then made a complaint to Anti-Discrimination NSW.

8. On 23 August 2024, the applicant provided supplementary information in support of her compassionate transfer application (Third Application). On 6 December 2024, the applicant’s complaint to Anti-Discrimination NSW was referred to the NSW Civil and Administrative Tribunal (NCAT/the Tribunal).

9. By a letter dated 12 February 2025, the applicant was advised that her Third Application had been approved, with four identified caveats.

10. The applicant contends that she has been discriminated against on the basis of her carer’s responsibilities that flow from her son’s disability, and also on the basis of her own disability, contrary to the provisions of the Anti-Discrimination Act 1977 (NSW) (AD Act).

11. For the reasons elaborated upon below, the Tribunal has dismissed the application. This is because the applicant has not established that the conduct she complains of constitutes either discrimination on the ground of disability or on the ground of carer’s responsibilities within the meaning of the AD Act.

The legislative framework

12. Discrimination on the basis of a person’s responsibilities as a carer is defined in s 49T as follows:

49T What constitutes discrimination on the ground of a person's responsibilities as a carer

(1) A person (“the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of the aggrieved person's responsibilities as a carer if the perpetrator--

(a) on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.

13. One of the areas in which discrimination on the ground of carer’s responsibilities is proscribed is in employment. The relevant provisions are set out in 49V of the Act as follows:

49V Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer--

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer--

(a) in the terms or conditions of employment that the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

14. Disability is defined in s 4 of the AD Act (and see also s 49A) as meaning:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

15. By s 49B(1), discrimination on the ground of disability is defined relevantly as follows:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator—

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

….

(4)   A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

16. In relation to discrimination in employment, s 49D provides relevantly as follows:

49D Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of disability--

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability--

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

…

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability--

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

17. The AD Act provides for review by the Tribunal in Part 9 Division 3. By s 108(1),

108   Order or other decision of Tribunal

(1)  In proceedings relating to a complaint, the Tribunal may—

(a)  dismiss the complaint in whole or in part, or

(b)  find the complaint substantiated in whole or in part.

18. In the event that the Tribunal finds the complaint substantiated, s 108(2) sets out a range of remedial powers that are conferred on the Tribunal, including the power to award monetary damages.

19. Also relevant are some provisions of the Teaching Service Act 1980 (NSW) (TS Act).

20. Section 13 of the TS Act provides as follows:

13 Determination of conditions of employment

(1) Except in so far as provision is otherwise made by law, the conditions of employment, including salaries, wages or other remuneration, of members of the Teaching Service are to be determined from time to time by the Secretary.

21. The key provision in issue in this case is s 51A, which provides as follows:

51A Transfer of officers within the Teaching Service

(cf ss 86A and 87 PSEM Act 2002)

(1) The Secretary may, subject to this section, transfer an officer of the Teaching Service to another position within the Teaching Service.

(2) A transfer of an officer under this section may be temporary or, following consultation with the officer, permanent.

(3) An officer may request a transfer under this section, but is not entitled to be transferred at his or her request.

(4) The Secretary may transfer an officer under this section without a request or the consent of the officer.

(5) An officer may be transferred under this section to any different workplace location in the State.

(6) The Secretary is not required to transfer an officer to another workplace location (whether or not under this section) if the Secretary considers that there is no reasonable prospect of ongoing work for the officer at the other location.

(7) A transfer under this section is to be made at the officer's existing level of salary. However--

(a) a transfer may be made at a level of salary that is higher or lower than the existing level of salary if the percentage variation is within the range determined by the Secretary as a minor variation, or

(b) a transfer may be made at any lower level of salary with the consent of the officer.

(8) An officer transferred under this section must possess the qualifications required for the position to which the officer is transferred.

(9) A permanent appointment may be made to the original position of an officer temporarily transferred under this section--

(a) if the officer consents, or

(b) if the transfer has continued or is likely to continue for more than 12 months, the officer is advised of the proposed appointment and the officer is given a reasonable opportunity to terminate the transfer and return to his or her original position.

(10) Nothing in this section (apart from subsection (6))--

(a) affects any other method (statutory or otherwise) by which officers can transfer or be transferred, or

(b) affects a direction under the procedural guidelines issued under section 93D that an officer undertake alternative duties at any location.

22. At the time the applicant first sought the transfer pursuant to s 51A of the Act, there was in force a Section 51A Compassionate Transfer Guideline (Guideline) which was described as providing “advice on the appropriate use of section 51A when compassionate grounds are established as outlined in the Agreement between the NSW Department of Education and the NSW Teachers Federation on the Staffing of NSW Public Schools 2016-2020 (the Staffing Agreement)”. The Guideline was described as applying to permanent teachers covered by the staffing agreement requesting a transfer from their current school, “based on exceptional and compelling circumstances” and principals, directors and executive directors “should use this Guideline when considering applications for transfers on compassionate grounds”. By clause 4.1, an application could be made to the principal where the permanent teacher: “has exceptional and compelling circumstances, beyond their or their principal’s control”; and, among other criteria, “provides supporting documentation from an independent third party substantiating the claim”.

23. Part 4.2 of the Guideline provided for Exceptional and Compelling Circumstances as follows:

4.2 Exceptional and Compelling Circumstances

Circumstances are regarded as exceptional and compelling where the current location causes undue hardship to an applicant because of:

• medical circumstances;

• environmental circumstances;

• serious personal circumstances; and/or

• extraordinary circumstances as determined at the discretion of the Executive Director, Public Schools NSW.

Exceptional and compelling circumstances are beyond the control of the applicant or their principal (or director in the case of a principal).

24. Those guidelines were amended from July 2024 and now provide a new process for determining applications for transfer. Significantly, the key criterion has also changed from the applicant being required to demonstrate “exceptional and compelling circumstances” to a requirement that the person establish exceptional and/or compelling circumstances. As noted above, the applicant’s most recent application was approved, by reference to the new guidelines (albeit with caveats).

The evidence and other material that was before the Tribunal

Applicant

25. On behalf of the applicant, the following was before the Tribunal:

1. Applicant’s summary of complaint (22 March 2025);

2. Applicant’s complaint to the NSW Anti Discrimination Board (22 March 2025);

3. Applicant’s rebuttal to respondent’s points of defence (20 May 2025);

4. Letter from Amanda Duggan, provisional psychologist at Mindflare (undated);

5. Letter from Samantha Cahill, Occupational therapist at Playful Stages Occupational Therapy (August 2023);

6. Letter from Rachael Cheong, Registered Psychologist, New Leaf Therapy, 4 October 2023;

7. What is described as an “undated letter of recommendation” (but dated 3 August 2024) from Amanda Duggan, registered psychologist, Mindflare Pty Ltd;

8. Letter (submission) by Rachael Cheong of New Leaf Therapy 19 August 2023 stating that the applicant meets the criteria for a compassionate transfer;

9. Letter from Dr Raiz Ismael, Mind Connections, to the applicant’s general practitioner reporting on the applicant’s mental health 11 June 2024;

10. Letter from Dr Raiz Ismael, Mind Connections, to the applicant’s general practitioner, stating “this is a clinical letter and NOT a medico-legal letter and only intended for the GP. … therefore the letter should not be released without the author’s permission.

26. The applicant provided a further bundle of material in reply which included the following material:

1. A personal impact timeline;

2. A statement of Amy Lendrum, a close friend of the applicant who reported on her observations of the applicant;

3. A statement of Douglas William Frith, the applicant’s father, who also reported on his personal observations of the applicant and on what he perceived as the “decline in her mental and physical wellbeing, her ability to cope and manage daily life since the onset of the dispute with her employer …”.

4. A statement of Michael Gregson, the applicant’s husband, noting how his wife had been affected by this dispute, and the impact this has had on the family;

5. A report of her general practitioner, Dr Inkeri D’Arcy-Clarke, dated 13 May 2025, styled “Report for Tribunal Purposes: Health and Functional Impact of Workplace-Related Stressors”:

6. Dr D’Arcy Clarke notes that, “based on our clinical discussions”, the stress the applicant is experiencing is “primarily associated with:

• Delays in receiving a decision regarding compassionate transfer

• The rejection of transfer applications without communication of adequate justification

• Ongoing uncertainty about her employment status

• A lack of responsiveness to requests for explanation or support”

7. A letter from Dr Inkeri D’Arcy-Clarke of 10 April 2025 setting out DASS scores over a period of time said “to demonstrate Charnee’s distress associated with the ongoing conflict in her attempt to access flexible work arrangements”.

8. The applicant also included an extract of a document described as “Department of Education Legal Issues Bulletin 3” (undated) with a summary of some aspects of procedural fairness. In that document, there is a paragraph about reasons for decision, stating that reasons “should include relevant details of the evidence or relevant details of other material upon which the decision is made and the rationale for preferring that evidence over other material”.

27. The applicant gave oral evidence and she read from prepared speaking notes/submissions, both in opening and closing her case. At the request of the Tribunal, she provided copies of those speaking notes/submissions to the Tribunal.

28. The applicant was cross examined by the respondent. She agreed that she had understood the requirement to provide supporting information with her application. While she had told the Tribunal that there were a number of reasons she had made the transfer applications, she acknowledged that in her First and Second Applications the only reasons she had identified were that she needed to be closer to her son so she could attend at his school if he became dysregulated, and she wished to avoid placing him in before and after school care. One of the other reasons she mentioned to the Tribunal was the need to be able to attend after-school appointments with allied health professionals which were highly sought after and difficult to reschedule. She acknowledged that she had not indicated that need on her applications.

29. The applicant told the Tribunal that she had assumed that if the transfer request was unsuccessful, the employer would work with her to consider what else could be done to assist her. She agreed that the only adjustment she had requested was to transfer to a school closer to her son’s school. Under cross examination, she stated that the “only reasonable adjustment would be a transfer”. This was because, in her view, that was the only adjustment that would meet all of her and her family’s needs and would allow her also to meet her professional obligations.

30. In relation to the most recent application, which was successful granted, she had some concerns about the caveats that were imposed with that decision, one of which was that she demonstrate her fitness for work as at the time of the decision, there was a certificate stating she was not fit for any work within the Department of Education to 18 February 2025. The applicant identified a concern about being able to arrive before the start of lessons, depending on how far the school was from her son’s school. She gave an example of one school on the list that has been approved if a transfer place becomes available: in relation to that school, there was a 15 minute window from dropping off her son and teaching starting, but she stated that it is a 20 minute drive to that school from her son’s school.

31. It was put to the applicant that with her teaching and other responsibilities, such as playground duty, she would always have to source some before or after school care unless she was located at the school her son attended. She did not accept that this was the case, at least in relation to before school care.

32. The applicant also agreed that if she had to leave the classroom if her son was being dysregulated, that would impact negatively on the other children in her care and the other teachers who would have to fill in for her.

33. The applicant was asked whether she had considered placing her son at the school where she teaches. She told the Tribunal that she had emailed the principal but did not receive a reply. She stated that not having had a reply, there seemed no point in making an application to enrol him out of area. There was nothing in the documentary evidence before the Tribunal about that request.

34. The applicant acknowledged that the mental health issues of which she produced evidence pre-dated her dispute about the requested compassionate transfer, but she was adamant that this dispute had led to a significant decline in her mental health.

35. The applicant had provided a number of certificates stating that she was not fit for work in education but conceded that at the time she was unfit for work with the respondent, she was working as a neurodivergent educator at Able2 Blue Mountains where she promotes behavioural support and runs workshops for families. She is also an NDIS provider.

Respondent’s evidence

36. The respondent filed a number of statements, which were entered into evidence without objection from the applicant who did not seek to question any of the witnesses who had provided evidence. Those statements were as follows.

1. A statement of Jennifer Thompson dated 30 April 2025. Ms Thompson was the decision-maker in relation to the First Application, in her then capacity as Relieving DEL of the Penrith Network of the respondent. She had experience of assessing s 51A applications and referred to the Guideline. She explained that the First Application was sent to her by the school principal at Penrith Public School from which the applicant was on leave without pay. Ms Thompson did not consider that the application met the criteria in the Guideline. She also referred to the number of students that have a disability requiring some adjustment, both within the Department generally, and in her current school where, of 530 students, 87 have minor adjustments for disability and 133 students have supplementary, substantial or extensive adjustments for disability. In her capacity as a principal, she receives 2-3 applications per year for flexible work conditions from staff due to their child having disability. Ms Thompson did not consider that the distance of travel (which is generally not considered exceptional or compelling) was significant and also noted that unless the applicant was placed at the school her son was to attend the following year, she would need to source before and after school care due to the requirements of her employment. If she did not use that care, she would be available only between the hours of 9.30 and 2.30 pm. Ms Thompson also referred to the concern that if the applicant were to leave the school to attend to her son, she would need to leave work which would require another staff member to be urgently reallocated. The application was not approved, but Ms Thompson noted a number of other options that were available to the applicant, such as continuing to take leave without pay and working casually while her son was transitioning to school, or have her son enrolled at her own school.

2. Statement of Pate Cooper 30 April 2025. Ms Cooper is the DEL of the Penrith Network, a position she has held since 29 April 2024 prior to which she was a relieving DEL from September 2023. In that role she is involved in considering compassionate transfer applications. She was involved in assessing the applicant’s Second Application. After setting out the factual background, Ms Cooper noted the two reasons given for the request. They were first, that the applicant’s son would not need to attend before and after school care and second, so that the applicant could quickly attend on her son if he became dysregulated to the extent that he would need her intervention. Ms Cooper explained that to meet the “exceptional” component of the Guideline there needed to be circumstances which “sit out of the majority of situations”. While she acknowledged that the applicant’s situation was difficult, she did not consider the circumstances to be “exceptional and compelling” for reasons that she outlined. These included that the material provided in support of the application did not support the severity of her claims. She also had before her a preschool observation report about how the applicant’s son was coping with preschool and stated that while it indicated that he needed significant support at certain times or during certain activities, this support could be provided by trained educators such as kindergarten teachers and support staff. She also considered that the applicant’s son could receive therapy during school hours. She stated that a number of other teachers in the department had children with similar circumstances and it was not unusual or uncommon for a teacher to have a child with disability nor is it uncommon for a teacher to have a disability. Ms Cooper did not consider the travelling distances to be long distances and in any event noted that the Guideline states that distance of travel to and from current school is generally not considered exceptional. Ms Cooper confirmed the decision not to approve the transfer on 18 October 2023 but subsequently discussed the matter with Ms Kaye Rigas, Executive Director, Public Schools, Metropolitan South and West, who supported Ms Cooper’s decision but recommended that Ms Cooper discuss the applicant’s medical conditions with the respondent’s Health, Safety and Staff Well Being Directorate. An officer from that part of the respondent responded to the applicant outlining the respondent’s approach to supporting and managing employees where it is found they are not fit to perform their role including what type of adjustments may be considered. Ms Cooper noted that transfer to another school was not listed as one of those adjustments. Ms Cooper informed the applicant by letter dated 4 December 2023 that her application was not successful. The applicant contacted her on 13 February 2024 asking for further reasons which were provided. She was asked in July 2024 to provide a further letter of explanation for her decision. Ms Cooper also noted the change in policy in July 2024 and indicated that she received an email from the applicant on 23 August 2024 containing supplementary information in support of her application. She had no further part in the decision making process.

3. Statement of Leah Anderson, 30 April 2025. Ms Anderson is the Director, School Recruitment Advisory and Priority Support, in which capacity she is responsible for leading and directing policy related to school staffing and resourcing. Her statement related to the application made by the applicant in August 2024 (Third Application). She explained the process by which vacancies are filled under a framework governed by the TS Act and the Staffing Agreement. In particular, she indicated the process by which a vacancy was filled when a vacancy arose at a school, and the list of (and ranking of) priority categories. She identified that being approved for a transfer does not guarantee a transfer: it merely places a person on a list of priorities when a vacancy becomes available. A s 51A transfer on compassionate grounds was sixth in line in the list of priorities. Ms Anderson also explained the change in policy that had occurred in July 2024 which affected both the substantive criteria governing a s 51A transfer and the process for considering applications. The critical change was that now a teacher only has to demonstrate that her circumstances are either exceptional and/or compelling and thus the threshold has been lessened for a teacher applying for a compassionate transfer. Ms Anderson then set out the process that was undertaken in considering the applicant’s August 2024 compassionate transfer application which included her identifying schools at which she would prefer to work. There was some delay in constituting the panel which is now part of the post July 2024 process. The application was approved with a number of caveats. There was a particular concern about the fact that the applicant had been certified as not fit for any work within the department as one of the criteria in the Guideline is that the person must be able to fulfil the inherent requirements of the role. Ms Anderson also noted that the applicant had made a workers compensation claim on or about 3 April 2024 alleging that she had sustained a “significant decline in mental health due to declined request for transfer in school” and this claim was declined by the department’s insurer on 22 July 2024.

4. Ms Anderson provided a further statement in reply dated 18 June 2025, Ms Anderson responded to a claim by the applicant that since her declined applications, there had been three service transfers to schools that she had nominated and this demonstrated that the decisions denying her First and Second Applications caused her to miss out on these opportunities for transfer. Ms Anderson noted that one of the applications was granted on a different basis, under a different test; and with respect to the two other positions to which transfers were matched (one in January 2024 and the other in December 2024), neither of the relevant schools was on the list of schools nominated by the applicant.

5. Statement of Ms Kaylene Rigas 30 April 2025. Ms Rigas is the Executive Director, Public Schools, Metropolitan South and West. In that capacity, she was contacted by Ms Thompson in relation to the First Application and was also contacted by Ms Cooper, then relieving DEL, in relation to the Second Application. Ms Rigas explained the criteria that had to be met for a successful transfer application, and the process for dealing with such an application. She was contacted by Ms Thompson in August 2023 who advised her that she did not consider that the application met the Guideline. Ms Rigas indicated that she did not make any decision in relation to the First Application. Ms Cooper contacted her in relation to the Second Application. She reviewed the material and while she noted that the decision was Ms Cooper’s to make, her own view was that the criteria were not met, that is, that the applicant’s circumstances were not exceptional and compelling given the frequency with which staff of the department had children with similar disabilities to the applicant’s son. Ms Rigas also raised concerns about whether the applicant would be able to fulfil the inherent requirements of her role as a teacher if she needed to attend on her son with little notice. She expressed concern about the applicant's own medical circumstances and suggested that the Ms Rigas signed the Second Application on 4 December 2023. She concluded her statement by referring to the changes to the compassionate transfer process.

6. Ms Nicole Flax, solicitor at Clayton Utz, provided a statement in which she indicated that she had undertaken an internet search of the applicant’s name and she attached material that she found. That material indicated that the applicant was working with Able2 Blue Mountains and was described as a neurodivergent educator. There was also a YouTube presentation connected to a website titled “Neurodivergent Educator” indicating that the applicant’s business has opening hours of 9-5 Monday to Friday and includes a list of services offered by the applicant. She is also a provider for NDIS services.

Submissions of the parties

37. Both the applicant and the respondent provided written submissions. In broad outline they were as follows.

Applicant

38. The applicant stated that she was both a person with a disability and a carer of a child with a disability and that the respondent had discriminated against her on both bases, referring to ss 49S, 49T, 49V; and, in relation to disability, ss 49B and 49D of the AD Act. She also contended that she had not received adequate reasons for the refusal of her First Application in August 2023 and that the respondent had failed to consult with her meaningfully and failed to consider the relevant medical evidence. She was, in her submission, treated less favourably than a person without carer responsibilities for a child with autism and ADHD would be treated in circumstances that are not materially different. Specifically, she argued that “the respondent imposed a condition that employees with children with autism and or ADHD specifically are automatically excluded from being considered for compassionate transfer” under the Guideline.

39. The applicant contended that she was also discriminated against on the basis of disability referring to the decision refusing the Second Application. In her view, the respondent’s Guideline requiring the circumstances for a compassionate transfer application to succeed to be “exceptional and compelling” exclude or minimise the impact of disability. She contended that the decision makers failed to take account of her or her son's individual circumstances. The reference to the fact that it is not uncommon for children to have those disabilities and require additional support separating from their carers was itself a breach of s 49T(1)(a) and/or (b) and s 49V(2)(b) “as the refusal relied on assumptions or stereotypes about autism and ADHD in general, rather than objective evidence”.

40. The applicant also complains of the limited inquiries made by the respondent in assessing her request. In her view, the Department’s interpretation of the term “exceptional” goes to the rarity of the diagnosis rather than to the impact the disability has on her child and herself. The applicant is also critical of the Guideline and notes that guidelines are not law. She contends that the Guideline is being applied in contravention of the AD Act because the respondent “applied a blanket condition that employees with children with diagnosis of autism and ADHD are excluded from transfers on compassionate grounds to meet their carer’s responsibility on the basis that autism and ADHD are common diagnoses”. In her view, this is discriminatory and resulted in her being treated less favourably than someone without carer’s responsibility or disability could have been treated.

41. In relation to the application that was granted, the applicant contends that this demonstrates that her request was reasonable and should have been granted initially as her circumstances had not changed: only the policy had changed

42. The applicant also contends that the respondent discriminated against her by having “Imposed a prolonged and unjustifiable delay in reviewing” her application. It is also said to have discriminated against her by taking no steps after refusing her application to consult with her about alternative adjustments. Even though her recent application has been approved, the applicant submits that the respondent discriminated against her by not implementing some interim measures for her as an application for transfer only puts the applicant on a list but does not guarantee a transfer until there is a job available and the person is matched for that job in a preferred school.

43. Another matter raised by the applicant is her concern about the limit on her leave without pay and the fact that she had been told that she would have to resume her employment after a certain period of time.

38. The applicant contends that the situation has had a devastating impact on her mental health and her children have also suffered as she has not been able to care for them the way they needed. She claims the respondent’s conduct has breached s 49D(2)(d) because it has resulted in significant detriment and psychological harm. She then set out what she saw as the loss she had incurred by reason of the claimed discrimination.

39. In the closing submissions, she responded to the proposition that there was evidence that she had ongoing mental health challenges. While she conceded that that was the case, she argued that this did not diminish the respondent’s causing her significant harm: she stated her mental health had deteriorated as a result of the respondent’s conduct. She also reiterated that providing statistics about how many students have disabilities demonstrates the discriminatory nature of the decision making process because it suggests that all disabilities impact the person in the same way. She contended that putting her child into before and after school care would put her child's life at risk and that now that the respondent had granted her application, this proved that it was reasonable to have done so earlier and the requested adjustment was reasonable, necessary and did not impose unjustifiable hardship.

Respondent submissions

46. In written submissions filed on 1 May 2025, after setting out the relevant history and factual background, the respondent characterised the applicant's claim as being “essentially that she is aggrieved by the respondent’s decision-making outcome or processes”. The respondent contended that the applicant had not explained how the elements under the AD Act had been satisfied in relation to her compassionate transfer applications, and also denied that it had engaged in any unlawful discrimination.

47. The respondent noted the four separate bases identified by the applicant as the matters about which she was aggrieved:

1. denial of her first and second compassionate transfer requests;

2. failure to provide interim support;

3. unreasonable delays in decision making; and

4. deliberate obstruction and failure to provide information.

48. After setting out relevant provisions of the AD Act, the respondents stated that direct discrimination has two elements: differential treatment and causation. Indirect discrimination requires an applicant to establish that they were required to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case. The onus is on the applicant to identify the requirement or condition relied upon and to prove that the requirement or condition was not reasonable: see Tyrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57 at [32]-[35].

49. The respondent accepted that medical circumstances, including disabilities, can be considered in compassionate transfer applications but for the reasons set out by the witnesses, the respondent did not consider that the applicant’s case met the Guideline criterion that required that the circumstances be both exceptional and compelling.

50. The respondent also denied that there was a general or blanket standard but rather contended that the individual application was considered by reference to its own material, and in relation to the second application, that included consideration of the applicant's own medical circumstances. Given the need to consider “exceptionality”, it was entirely appropriate that the decision makers had regard to the experiences of other students with disabilities as determining whether circumstances are “exceptional and compelling is not a decision that can be made in a vacuum devoid of context”.

51. The respondent also rejected the proposition that it was required to conduct its own investigation or seek further information from the applicant in a context where it was for the applicant to establish the basis for her application.

52. As for the claimed failure to provide the applicant with interim support, the respondent rejected any obligation to do so, stating that there is no requirement to make any temporary arrangements, such as offering the applicant a temporary appointment at a school of her choice while waiting for a more long term vacancy to rise. The respondent characterised this as the applicant suggesting she ought to have been treated more favourably than other employees by being provided with benefits that are not available to other employees.

53. The respondent pointed out that there is no entitlement to transfer to a role at a different school even if the application is successful: it still depends upon there being a vacancy available. Nor is there any entitlement to leave without pay which is addressed in chapter 4 of the Teachers Handbook.

54. As for unreasonable delay in decision making, the respondent denies that the time it took was unreasonable but also makes the point that this cannot amount to a breach of the AD Act. The same applies to the contention that there was deliberate obstruction and failure to provide information.

55. The central proposition put by the respondent is that the applicant’s claim does not establish discrimination. This is because she was not subject to any detriment in employment. Specifically, she was not dismissed from her employment or denied or limited access to opportunities for promotion, transfer or training. Rather, she was unhappy with the outcome of her first two applications which were determined not to meet the criteria. And while the applicant contended that she ought to have been offered workplace adjustments, the respondent pointed out that her applications sought only a transfer and did not raise any other request for workplace adjustments.

56. Even if, which the respondent did not consider the case, the applicant could establish that she had been subjected to a detriment, she would in the respondent’s view be unable to establish that that was because of either her disability or her carer’s responsibilities. This is because a teacher without a disability or carer responsibilities would have been no more likely than the applicant to have had their compassionate transfer application approved; or to have been granted an immediate appointment while awaiting approval of the application. A teacher without a disability or carer responsibilities would have been subject to the same decision timeframes as the applicant and would also be likely to have been asked about their leave plans and intention to return to school.

57. Further, the respondent contended that the applicant has not established that she was treated less favourably by reason of her disabilities or carer responsibilities. The mere fact she has disabilities or carer’s responsibilities and feels aggrieved about a decision made by her employer does not amount to a conclusion that the conduct occurred because of her disabilities or carer responsibilities.

58. So far as indirect discrimination is concerned, the applicant had not identified any requirement or condition imposed on her to which a substantially higher proportion of persons without a disability or carer’s responsibilities are able to comply. Nor was there any basis for the contention that the applicant had been constructively dismissed.

59. While the applicant has contended that she had not been provided with “reasonable adjustments”, this is not a concept within the AD Act but rather is something that arises under the Disability Discrimination Act1992 (Cth) However, as the statements of the witnesses demonstrate, the respondents held genuine concerns that a compassionate transfer would not have supported the applicant to perform the inherent requirements of her position. Even if the applicant were to establish that there was discrimination because of her disability, it would not be unlawful pursuant to s 49D(4)(a) of the AD Act.

60. For those reasons the respondent contended that the applicant had not met her onus of establishing there had been any discrimination.

61. In the event that, contrary to the respondent’s arguments, the Tribunal found in the applicant’s favour on the issue of whether she had been discriminated against, the respondent further submitted that the remedial orders sought by the applicant should not be made. First, the applicant had not demonstrated that any loss or damage she claimed was caused by the respondent and noted that there was no medical evidence presented to the Tribunal in the form of an independent expert report. The reports that came from her treating practitioners and her son’s allied health professionals appeared to be prepared for the purpose of advocating for the applicant. One of the two letters from Dr Ismael specifically indicated it was not a medico-legal report and was not to be released without the author’s permission.

62. The respondent contended that the applicant was also seeking orders that the tribunal could not make, specifically referring to the request for an immediate temporary appointment.

63. Finally the respondent contended that the application to amend the application to identify the end date as “ongoing” ought not be granted as it was “inherently ambulatory”.

Consideration

What the applicant must establish

64. The onus of proving discrimination on the balance of probabilities pursuant to the AD Act lies on the applicant: see e.g. Braiding v Charles Sturt University [2016] NSWCATAD 90 at [34]; Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2017] NSWCATAD 355 at [86]-[87]; Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 at [60].

65. As the applicant has not clearly separated out her case on the basis of disability discrimination, nor on the basis of her carer’s responsibilities, nor has she identified whether she relies on direct or indirect discrimination, these matters will be considered together.

66. The respondent did not challenge the fact that the applicant’s son has a disability, nor did it cavil with the applicant’s evidence about her disability. Equally, it did not challenge the fact that the applicant was a person with carer’s responsibilities. Indeed, there was no factual dispute of any kind and the applicant did not seek to challenge any of the material filed by the respondent. Rather, the dispute was whether, given the evidence before the Tribunal, that could amount to discrimination under the AD Act.

67. In McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299 at [33]-[35], Principal Member Britton summarised what must be established for a claim of direct discrimination on the ground of disability to succeed as follows (and see also Han v NSW Department of Health [2006] NSWADT 113 at [71]-[74]):

Statutory framework

33   Section 49D(2) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of disability:

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

34   Discrimination on the ground of disability is defined by s 49B of the Act. …

35   For the claim of discrimination on the ground of disability to be substantiated, Mrs McCrystal must establish:

(1) That she has, or is thought to have, a disability: ss 4 and 49A of the Act.

(2) That the conduct about which she complains falls within s 49D(2) of the Act.

(3) That in respect of that conduct, the Commissioner treated her less favourably than he treated, or would have treated, a person without her disability, real or presumed, in the same circumstances or circumstances that were not materially different (less favourable treatment)

(4) That one of the reasons for any less favourable treatment was Mrs McCrystal’s disability or presumed disability (causation). (emphasis in the original)

68. While there is no real dispute about the applicant having carer’s responsibilities, or having a disability, the applicant needs to show that she has experienced a detriment in her employment; that she was treated less favourably than a person without her disability or her carer’s responsibilities and that the reason for that treatment was her disability or her carer’s responsibilities.

69. The applicant contends that the refusal of her transfer application is the relevant detriment. She appears also to argue that requiring her to return to work after a certain period of leave without pay is a detriment in the terms or conditions of her employment.

70. Of the other matters in relation to which the applicant is aggrieved, neither a failure to provide reasons nor a delay in decision making falls within s 49D(2) nor within s 49V.

71. The real barrier for the applicant in this case is demonstrating that in refusing her transfer application, or requiring that she return to work after a certain period of leave without pay, she was treated less favourably than a person without a disability or without carer’s responsibility but who is in the same circumstances or circumstances that were not materially different would have been treated.

72. The applicant has contended that the relevant comparator is a person who had neither her disability, nor her carer’s responsibility for a child with disability.

73. The leading authority is the decision of the High Court of Australia in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 82 (Purvis) where Gummow, Hayne and Heydon JJ said at [223] (and see also Callinan J at [273]):

[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. …

74. To the extent, which is unclear, that her claim includes a claim of indirect discrimination, the applicant has not identified what is the relevant requirement or condition that a person with disability or carer’s responsibility is unable to meet by contrast with someone without her disability or carer’s responsibility.

75. As for the relevant comparator, in this case, the applicant not having identified any particular example of how someone without her disability or carer’s responsibilities would have been treated, the comparison needs to be with how a hypothetical comparator without her disability or responsibilities would be treated in the same circumstances: see Purvis at [236]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46]; Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106). The applicant must also establish causation in the sense that her disability or carer’s responsibility must be one of the “real”, “genuine” or “true” reasons for her having been denied the transfer: see Burns v Sunol [2014] NSWCATAD 62 at [34]).

76. The applicant has contended that the Guideline that provides decision makers with guidance as to the implementation of s 51A of the TS Act is itself discriminatory. She contends that the Guideline “enforces a blanket condition with specifically denies flexibility to carers of autistic children” which is discriminatory. She also notes that the Guideline is not itself legislation.

77. The relevant legislation is the TS Act. The text of s 51A is set out above at [23]. It will be recalled that s 51A(3) provides: “An officer may request a transfer under this section, but is not entitled to be transferred at his or her request”. And by s 51A(6), the Secretary is not required to transfer an officer “if the Secretary considers that there is no reasonable prospect of ongoing work for the officer at the other location”.

78. It is thus evident from the statutory power that enables transfers that there is no entitlement to a transfer. Given the number of officers in the Department, it is entirely understandable that the respondent would have published some type of guide to assist officers in exercising the discretionary power under s 51A.

79. While the applicant is correct that the Guideline has no express statutory force, in circumstances where a guideline is not inconsistent with the relevant legislative requirements, it is well accepted that guidelines “promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in "high volume decision-making"”: see M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54] (per French CJ; Bell, Keane and Gordon JJ), referring to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642 (per Brennan J). This principle is also incorporated into the Administrative Decisions Review Act 1997 (NSW) (ADR Act) by s 64(1).

80. Thus the Tribunal finds that there is nothing either inconsistent with the governing legislative framework, or manifestly discriminatory in the Guideline that was used and applied by the respondent in determining the applicant’s applications for transfer. Nor is the fact that her third application was approved, after the change in the text of the Guideline, any indication that the earlier decisions were not correct.

81. The Tribunal finds persuasive the evidence of the respondent’s witnesses to the effect that the First and Second Applications were properly considered, on their own merits, but were found not to meet the Guidelines that required her to establish that her circumstances were both exceptional and compelling. When the Guidelines was changed, so as to require an applicant to establish that their circumstances are exceptional and/or compelling, her application succeeded. Contrary to the applicant’s submission, this does not illustrate that the first two decisions were not the correct and preferable decisions. Rather it demonstrates that the change of Guideline enabled her circumstances to be considered by reference to a standard that was less onerous than having to establish that those circumstances were both exceptional and compelling.

82. The other matters of which the applicant complains do not constitute conduct that is proscribed under the AD Act. There is no basis for finding that a failure to provide reasons (even if such a failure could be established, which the Tribunal does not find necessary to consider) is actionable conduct under the AD Act. Nor is what the applicant identifies as “unreasonable delays in decision making” conduct that falls within the AD Act.

83. The applicant also contends that the respondent has engaged in “deliberate obstruction and failure to provide information”, also conduct that is not actionable under the AD Act.

84. There is also no obligation on the respondent proactively to engage with her to offer her adjustments that she did not seek. It will be recalled that the applicant accepted in her evidence that the only identified matter she was seeking from the respondent was a compassionate transfer. Nor, now that that transfer has been approved, is there any obligation on the respondent to offer her by way of some sort of “interim measures” a temporary transfer in advance of the process that is put in place by the TS Act and the Guideline for implementing transfers once an application has been approved. If there were such a process, that would place her in a position where she is advantaged ahead of all other officers of the respondent seeking transfers.

Conclusion

85. For all the reasons set out above, the Tribunal finds that the applicant has not established that she has been discriminated against on the basis of either her disability or her carer’s responsibilities. As she has not identified any basis upon which her claim could meet the statutory requirements of the AD Act, the Tribunal does not consider it necessary to consider what remedy, if any, might have been available to her pursuant to s 108(2) of the AD Act had any of her claims been established.

Orders

1. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 August 2025